Good morning, honors. May it please the court. My name is Kevin Bram. I represent the appellant in this case, Mr. Michael Logan. The honors I first want to begin with an apology of the court and let me explain. In preparing this weekend, I discovered that a recent Supreme Court case regarding interpretation of part of the bank fraud statute might have some negative application to part of the argument I've raised and I want to bring that to your attention. And if I may explain what that is, earlier this summer, the Supreme Court and the law for the United States case, that are an opinion interpreting one of the two sections of the bank fraud statute. The bank fraud statute itself has a part one which says to defraud a financial institution and then also a part two to obtain any of the money, funds, credits, securities, et cetera, owned by or under the custody of financial institution. By means of false or fraudulent pretenses, there apparently been a circuit split. I don't believe the fourth circuit was part of that split, not really addressed the issue. But the split is to whether that section two required proof by the government of specific intent to defraud the bank. I think the case law has been pretty clear that as to the first section of the bank fraud act, there was a requisite element of specific intent to defraud the financial institution itself. So the Supreme Court and its decision at the end of June of this year in law for and found that as to subsection two of the bank fraud statute. Why didn't you, you could have brought this to our attention well before the day of argument. You know, I apologize and the reason is the brief of we're back finished back in February. And I wasn't vigilant as I should have been and when the opinion came out in late June
. Did not this a supplemental authority? Well, the reason not is the under as I'll explain the way the charges are framed in this case. You have first of all, no substantive bank fraud counts. You have substantive wire fraud counts. As to those counts, I believe the case laws we stated is very clear. There's a specific intent to defraud element of those counts. And then as to bank fraud, the way it's charged in this case is part of the first count conspiracy, which identifies both bank fraud and wire fraud as the underlying criminal acts of the conspiracy. The bank fraud reference does it designate by separate statute sections. It does use both. Aside from the tardiness of bringing this up, I'm not sure it helps you because the evidence here is simply overwhelming in terms of what your. What's your client was up to and I bring it to court. I just don't I don't see this as much of a question of law. I just think it's a question of it's basically just down to a jury question and as to whether your client intended. He defrauded everyone in the neighborhood. He defrauded the borrowers and he defrauded the credit union and everything. And the question is whether he intended to do so. And there was overwhelming evidence before the jury that he knew what it was up to
. They were. They were. Driving credit union officials. They were making false affliction false representations to the borrowers. He's up to his neck and fraud. I think these you don't think his case does have you do you know and that's why I'm trying you know your part. You're you're you're diving on your sword. In a sense it doesn't have you don't think it out. You think he you think he. You're. You overstated in your brief. You're abandoned in that part of well what we stayed in the brief was that what did they have to prove and approve and attempted to fraud. It has to be a potential to fraud and that's the point in that and your standards not sufficient evidence of an attempt to defraud. And that's the question that you lost on. Motions in the district court you lost it before the jury and you're saying that up here and that's what that gets down there whether there is enough and it looks pretty. Damn for your your your fellow did you all try the case or just you did we did the vendor had it for
. We had it from the outset we we did try the case and appreciate the candor of the court in expressing your views quickly about the facts in the case. Obviously we respectfully. For a long time I look and evidently you say that some of it shouldn't have come in well I think there's there's there's bad looking evidence in that certainly. We don't dispute what you have here clearly is a partnership between my client Mr. Logan and Mr. Bingham and we understand that the reality of that relationship relationship of a partnership often entails but not necessarily always the partners knowing what each other doing. So our content in this case is because of the somewhat unique characteristics of each of these two partners. There was not a situation where they necessarily knew what each other were doing and more importantly the issue we presented and we're presenting to you and I understand that a sufficiency argument is always a big uphill battle for a defendant when they think that we can we understand that reality. What I'm asking this court to look at is because of the unique characteristics of the individuals involved. We don't believe there's enough evidence to show that Mr. Logan had the intent because he didn't have the knowledge that Mr. Bingham and also Mr. Bingham surrogate the inside man Mr. Nixon Mr. Bingham. Right
. Your guys blame the one that on those two they're the real culprits here so what you say. We're saying that they clearly acknowledge and we believe the evidence is overwhelming that they commit a fraud on Navy Federal. The question we've raised is we don't believe that the evidence was sufficient and Mr. Logan was sufficiently knowledgeable about what they were doing vis-a-vis Navy Federal to make him a knowing particular. He was lying to everybody and he got all the money as it turns out. Well, certainly don't agree with that as we laid out. I know you don't agree with that. I wouldn't expect this but he's wasn't submitted to the jury on any kind of negligence theory. I mean, the men's rate was made perfectly clear that he was either going to be, you know, an actual knowing encounter will fulfill blindness. Well, we didn't suggest negligence in that respect. Certainly there wasn't any negligence of instruction. No, and that's not really an issue. The concern we had first of all was, and of course what we initially our primary argument the jury would be, again as I'm suggesting to you, that although they are partners and there's no dispute about that, they basically had not a not a Chinese wall of formal sense. But Mr. Bingham, because of his prior employment with Navy Federal, his knowledge about the long-term. Mr
. Bingham was the insider at the credit union. He was kind of the recent insider. He actually left Navy Federal, gone to a job with veterans administration, but also in a loan officer capacity. And his previous colleague, Mr. Nixon, who was also charged. Logan, you know, on the brides. Mr. Logan, our contentionism, I believe you haven't showed again to Mr. Bingham, Mr. Logan would make payments at Mr. Bingham's direction to his. Yes, your club was paying the money to the guys at the back. And so what he says that he was instilling a thing of the holdings. Well, what I want to report to consider, as you look at the record, the key witness for the government was Mr. Bingham. And I'd ask you carefully consider when you look at his testimony in total, I think it actually gives a very good overview
. And he pledged something. Yeah, he pledged, he pled also to the plan and cooperation and testified against. Exactly. Yes, he certainly did. He's a turn coat. A minute co-conspirer. Right. And when you look at his testimony, again, he's a key government witness. He lays out what I believe is a pretty accurate overview of what the relationship was between him and my climate, Mr. Logan. Mr. Bingham leaves Navy Federal Credit Union employment, moved to Georgia, takes a job with the Veterans Administration, also in a loan officer capacity. He moves into a neighborhood where Mr. Logan lives, they become friends. They decide to start a business together, which Mr. Bingham insisted at trial, no one disputed that business start off as a legitimate business called Cash Money Brothers
. That was going to manage properties, was going to try to obtain partners who had good credit, they could buy properties, manage them, rent them out, fix them up, possibly flip them later if the market went up. And that Mr. Bingham stayed, that was a legitimate business they started. And that when the question of let's get financing for purchasing properties came up, Mr. Bingham and Mr. Logan do not have a good credit record. So they need to bring in partners, people they believe to have good credit records who could qualify for loans. And then Mr. Bingham was the one who handled the loan processing with Navy Federal because that's where he had been employed and he knew people there. And then as Mr. Bingham's testimony establishes, is this... Where are we going with all this? I mean, it seems to me where we're going is where he wouldn't want to go because we are just recounting the evidence that was submitted to the jury. Well, we're about to get to the point I appreciate that you know, as Mr. Bingham's testimony progressed as to the chronology, Mr
. Bingham is in touch with Mr. Nixon who was at Navy Federal. And initially, Mr. Bingham is saying, we're going to start submitting these loans. Well, Mr. Lovegren knew what Mr. Bingham was up there. This is the point, Your Honor. Mr. Bingham's acknowledgement his own testimony is when they initiate the loan process through Mr. Nixon, the request that Mr. Nixon was, let's not falsify loans, he didn't suggest that, is can you basically take our loan from the bottom of the pile and bring it to the top of the pile so we can get quicker processing. And we should do that for us. And that even Mr. Nixon, his trial testimony, another government witness. So that's what the bribes are paid for to get them to the top of the stack
. Well, I wouldn't use the term bribe, but they would like to term bribe, but if you had to view it in the light most favorable to the government, they called it a bribe and the jury must have thought it was a bribe. And even under what you say, it's a bribe, I mean, they were influencing the decisions of the bank. That would be correct. They forget them from the bottom of the stack to the top of the stack. Exactly. So they get approved quicker. And that's the point I'm trying to make is when you look at Mr. Bingham's testimony at the outset, with Mr. Logan would have known would be Mr. Bingham has someone that maybe federal work in there who can get these loans to move more quickly. And we're going to pay him a fee bribe if you will call it that. That's what they argued about it. It's not my term. It was used to trial and send the briefs. I understand that. I mean, the government calls it bribe
. And there was something they argued it's a jury that was bribe, right? We don't dispute the payments made. Famous paid and they got into the jury. They're bribs. And the jury found Mr. Logan guilty. So they must have taken it taking the due most favorable to the government. They found them to be bribe. Well, the point would try to be a slang term in the context of what really happened here. But we don't dispute the jury with the government theory. Well, I guess the point we're trying to make is that once this process began where it's moving the loans from the bottom to the top of the stack, then Mr. Bingham's testimony indicated that there was some problems with the processing of some of the loans not going through. And that he was in touch with Mr. Bingham's in touch with Mr. Nixon. And they basically arranged that there's going to be falsified information in some of these loan applications. We just think this was the essence of James point. We just rehashing evidence that was that was before the jury. And you know, I mean, that's your problem. If you've got an adverse jury, or I know you don't like certain evidence that came in. You didn't like the fact that evidence from the testimony from the individual borrowers came in, but it was. I didn't see the problem with that. It was all part of one. We all wrapped up in one scheme. And the. The, the, the, the, the, the, the borrow, I mean, the floating the credit unit. And the floating the borrowers, each was necessary to accomplish the conspiracy in its totality, because without the floating the, the, the bariturs, he would never have gotten them to submit the applications without telling them that these loan proceeds were going to be used to manage the. The property went in fact they were used for his personal benefit. So why. Why for example, was it erroneous for him to, for the district judge to admit testimony from the borrowers, because they were all part of this. They were all part of this scheme. We didn't object to the testimony of borrowers that showed the processing portion of the case. That is how they were approached and they agreed to become partners and to sign on certain loans
. We just rehashing evidence that was that was before the jury. And you know, I mean, that's your problem. If you've got an adverse jury, or I know you don't like certain evidence that came in. You didn't like the fact that evidence from the testimony from the individual borrowers came in, but it was. I didn't see the problem with that. It was all part of one. We all wrapped up in one scheme. And the. The, the, the, the, the, the, the borrow, I mean, the floating the credit unit. And the floating the borrowers, each was necessary to accomplish the conspiracy in its totality, because without the floating the, the, the bariturs, he would never have gotten them to submit the applications without telling them that these loan proceeds were going to be used to manage the. The property went in fact they were used for his personal benefit. So why. Why for example, was it erroneous for him to, for the district judge to admit testimony from the borrowers, because they were all part of this. They were all part of this scheme. We didn't object to the testimony of borrowers that showed the processing portion of the case. That is how they were approached and they agreed to become partners and to sign on certain loans. It was some of the other testimony where they then were in effect, complaining about certain promises that claim is to Logan made it. They didn't keep them about the maintenance and management of the properties we thought went beyond what was relevant to the fraud charge. So the only and wrapping up my time is about to expire. The point we're trying to make and I understand what your comments are is that once you look at again Mr. Bingham's testimony, when there's a shift in conduct with maybe federal to actually put false information in applications, which is really the heart of the fraud. Mr. Bingham doesn't suggest or testify in order to Mr. Nixon that they discussed that with Mr. Logan. So that means Mr. Logan's left thinking. Well, one of these fellows said that he's that Mr. Logan, supply him with a copy of the loan application and they went through a litany of false statements on it like it says you work for low tour investors. Is that correct? No. Yeah, Mr. Dulles
. It was some of the other testimony where they then were in effect, complaining about certain promises that claim is to Logan made it. They didn't keep them about the maintenance and management of the properties we thought went beyond what was relevant to the fraud charge. So the only and wrapping up my time is about to expire. The point we're trying to make and I understand what your comments are is that once you look at again Mr. Bingham's testimony, when there's a shift in conduct with maybe federal to actually put false information in applications, which is really the heart of the fraud. Mr. Bingham doesn't suggest or testify in order to Mr. Nixon that they discussed that with Mr. Logan. So that means Mr. Logan's left thinking. Well, one of these fellows said that he's that Mr. Logan, supply him with a copy of the loan application and they went through a litany of false statements on it like it says you work for low tour investors. Is that correct? No. Yeah, Mr. Dulles. Mr. Dulles, monthly pay is $5200 a month. Is that correct? No. It says you're the chief finance officer of low to investors. Is that correct? No. It says your business phone is and I give them what's the number in here? Is that what your phone number was? No. I agree that he says Logan gave you that stuff. It's all false. That's the loan application. That was a testimony of yes, a lockslee Douglas. He's a lovely person. Came forward and said anything like that. And as I think you've seen the breach, he also acknowledged on earlier occasions haven't said things contrary. So again, looking at the totality of the evidence, our position would be that there's not enough substantial evidence to show the required intent and knowledge of Mr. Look. Thank you, sir
. Mr. Dulles, monthly pay is $5200 a month. Is that correct? No. It says you're the chief finance officer of low to investors. Is that correct? No. It says your business phone is and I give them what's the number in here? Is that what your phone number was? No. I agree that he says Logan gave you that stuff. It's all false. That's the loan application. That was a testimony of yes, a lockslee Douglas. He's a lovely person. Came forward and said anything like that. And as I think you've seen the breach, he also acknowledged on earlier occasions haven't said things contrary. So again, looking at the totality of the evidence, our position would be that there's not enough substantial evidence to show the required intent and knowledge of Mr. Look. Thank you, sir. Thank you. Appreciate it. Mr. Grain. May he's the court. My name is Alex one for the United States and I'll be brief unless the court has any questions. But essentially, Mr. Brem is rating three arguments none of which have married first on the sufficiency of the evidence claim. He's trying to litigate here, really, litigate the case here and that's not appropriate. What is there to those other than the sufficiency of the evidence claim where we're simply rehashing the evidence at trial? Yes, correct the honor. Well, the evidence in this case here shows that there's direct evidence of the defendant intending to defraud the bank. He submitted false membership applications. He personally submitted false loan applications, which was confirmed by witness testimony. He personally submitted documents to the bank, which claimed these lease applications for the false and he bribed personally bribed. I mean, there's a judge king touched on it, but there's an avalanche of evidence in this case both these are the credit unions in the bank and these are the borrowers. He's defrauding everybody
. Thank you. Appreciate it. Mr. Grain. May he's the court. My name is Alex one for the United States and I'll be brief unless the court has any questions. But essentially, Mr. Brem is rating three arguments none of which have married first on the sufficiency of the evidence claim. He's trying to litigate here, really, litigate the case here and that's not appropriate. What is there to those other than the sufficiency of the evidence claim where we're simply rehashing the evidence at trial? Yes, correct the honor. Well, the evidence in this case here shows that there's direct evidence of the defendant intending to defraud the bank. He submitted false membership applications. He personally submitted false loan applications, which was confirmed by witness testimony. He personally submitted documents to the bank, which claimed these lease applications for the false and he bribed personally bribed. I mean, there's a judge king touched on it, but there's an avalanche of evidence in this case both these are the credit unions in the bank and these are the borrowers. He's defrauding everybody. That's correct, your honor. And for that reason, the sufficiency of the evidence claim obviously fails. Did you try the case? Yes, your honor. He says that there was evidence admitted that was erroneously admitted. That's the second point that you're going to get to. And what I was concerned about what I want to focus on is that you throw in an alternative argument there that it was that harmless error. You argue harmless error in this case. I was glad we're gassed it. We come in in this case and say, well, maybe we did over try it, but if we did it was harmless. No, your honor. The thrust of the argument would be on the first time. I was surprised you were already harmless error in this case. We rest mainly on the relevant. It's clearly relevant to the scheme. You lie to the bank so you get the money to the straw borrowers. I was just a precautionary sale
. That's correct, your honor. And for that reason, the sufficiency of the evidence claim obviously fails. Did you try the case? Yes, your honor. He says that there was evidence admitted that was erroneously admitted. That's the second point that you're going to get to. And what I was concerned about what I want to focus on is that you throw in an alternative argument there that it was that harmless error. You argue harmless error in this case. I was glad we're gassed it. We come in in this case and say, well, maybe we did over try it, but if we did it was harmless. No, your honor. The thrust of the argument would be on the first time. I was surprised you were already harmless error in this case. We rest mainly on the relevant. It's clearly relevant to the scheme. You lie to the bank so you get the money to the straw borrowers. I was just a precautionary sale. That's correct, your honor. I hope it's trying to protect the record. But essentially, it's impossible, as you pointed out, to commit this fraud scheme as described explicitly in the superseding indictment without talking about what was told to the bars who were. And they went to the same well and asked the bars to keep applying for more. No, you're right. I'm sorry, your honor. There is no error. Correct, your honor. That would be our position. I can stick with that now. Thank you, your honor. You've got a willful blindness instruction. I say that you shouldn't have gotten that. Well, your honor, the defendant, as you saw, basically claimed and told you that the defendant was the president of cash money brothers. And there was no way he knew a fraud was being committed by his co-conferitors and his partners. And that argument, which was made at trial, makes the willful blindness instruction particularly appropriate
. That's correct, your honor. I hope it's trying to protect the record. But essentially, it's impossible, as you pointed out, to commit this fraud scheme as described explicitly in the superseding indictment without talking about what was told to the bars who were. And they went to the same well and asked the bars to keep applying for more. No, you're right. I'm sorry, your honor. There is no error. Correct, your honor. That would be our position. I can stick with that now. Thank you, your honor. You've got a willful blindness instruction. I say that you shouldn't have gotten that. Well, your honor, the defendant, as you saw, basically claimed and told you that the defendant was the president of cash money brothers. And there was no way he knew a fraud was being committed by his co-conferitors and his partners. And that argument, which was made at trial, makes the willful blindness instruction particularly appropriate. Right, your honor. So we cite a number of four certain cases that show that wherever the defendant's claiming or disavowing knowledge of the fraud, but there's obviously red flags here, bribes being paid, loans defaulting, no repairs being made, that that instruction is particularly appropriate. Have your lady made clear that carelessness on negligence or whatever was absolutely not a basis on which to connect? That's correct, your honor. And the judge specifically used the omelain instruction, which says you may not conclude that the defendant have knowledge, however, from proof of a mistake, negligence, carelessness or belief in an inaccurate proposition. So the joint instruction was plainly appropriate and appropriately given in his case and we asked the court to have. Do you have any further than further? Not unless the court has any questions. Judge Hamilton, do you have any questions? No, sir. Good King. Thank you, Your Honor. Mr. Brein. Thank you, Your Honor. It's just a quick point on the what's commonly called deliberate ignorance or willful blindness. The current concern we raised in this case was not that the language of the instruction was anyway incorrect. It's just that it simply shouldn't have been given. I understand from the court's comments
. Right, your honor. So we cite a number of four certain cases that show that wherever the defendant's claiming or disavowing knowledge of the fraud, but there's obviously red flags here, bribes being paid, loans defaulting, no repairs being made, that that instruction is particularly appropriate. Have your lady made clear that carelessness on negligence or whatever was absolutely not a basis on which to connect? That's correct, your honor. And the judge specifically used the omelain instruction, which says you may not conclude that the defendant have knowledge, however, from proof of a mistake, negligence, carelessness or belief in an inaccurate proposition. So the joint instruction was plainly appropriate and appropriately given in his case and we asked the court to have. Do you have any further than further? Not unless the court has any questions. Judge Hamilton, do you have any questions? No, sir. Good King. Thank you, Your Honor. Mr. Brein. Thank you, Your Honor. It's just a quick point on the what's commonly called deliberate ignorance or willful blindness. The current concern we raised in this case was not that the language of the instruction was anyway incorrect. It's just that it simply shouldn't have been given. I understand from the court's comments. The circumstances didn't warrant a willful blindness instruction. Yes, again, with the emphasis we make is that under the law, the willful blindness instruction may be appropriate, although the cases have said it should be rarely used. And if it's appropriate, it's when there's evidence, the defendant questioned purposely did something to try and avoid knowing. As opposed to simply saying, I didn't know. That just doesn't open the door. What was the order saying? I thought the representation was whether he was claiming that your man, Vengem, hoodwink team or something. And got him into this mess. Well, it wasn't a hoodwink. I mean, can they start a legitimate business as Mr. Bingham himself testified? Robin, in Vengem was down there, robbing the people at the bank and you were fairly distantly paid him $3,500 or whatever it was. $700 per application. All he did was innocent because he was relying on Vengem. Well, which seemed like pretty good place to fill in a willful blindness instruction. We're a government to ask for it and for the judge, which we review that for a view of discretion, right? Whether the giving whether the willful blindness instruction was appropriate in the circumstance. That is correct. It is a beautiful case
. The circumstances didn't warrant a willful blindness instruction. Yes, again, with the emphasis we make is that under the law, the willful blindness instruction may be appropriate, although the cases have said it should be rarely used. And if it's appropriate, it's when there's evidence, the defendant questioned purposely did something to try and avoid knowing. As opposed to simply saying, I didn't know. That just doesn't open the door. What was the order saying? I thought the representation was whether he was claiming that your man, Vengem, hoodwink team or something. And got him into this mess. Well, it wasn't a hoodwink. I mean, can they start a legitimate business as Mr. Bingham himself testified? Robin, in Vengem was down there, robbing the people at the bank and you were fairly distantly paid him $3,500 or whatever it was. $700 per application. All he did was innocent because he was relying on Vengem. Well, which seemed like pretty good place to fill in a willful blindness instruction. We're a government to ask for it and for the judge, which we review that for a view of discretion, right? Whether the giving whether the willful blindness instruction was appropriate in the circumstance. That is correct. It is a beautiful case. I think it's a fantastic legal principles contained therein. You just say in these circumstances, it was an abusive discretion to give. Correct. The language of the instruction actually used was correct language. The issue is should have been given at all we can tend to should not. Thank you so much, Aaron. We will come down to greet Council and then we will move into our last case.
Good morning, honors. May it please the court. My name is Kevin Bram. I represent the appellant in this case, Mr. Michael Logan. The honors I first want to begin with an apology of the court and let me explain. In preparing this weekend, I discovered that a recent Supreme Court case regarding interpretation of part of the bank fraud statute might have some negative application to part of the argument I've raised and I want to bring that to your attention. And if I may explain what that is, earlier this summer, the Supreme Court and the law for the United States case, that are an opinion interpreting one of the two sections of the bank fraud statute. The bank fraud statute itself has a part one which says to defraud a financial institution and then also a part two to obtain any of the money, funds, credits, securities, et cetera, owned by or under the custody of financial institution. By means of false or fraudulent pretenses, there apparently been a circuit split. I don't believe the fourth circuit was part of that split, not really addressed the issue. But the split is to whether that section two required proof by the government of specific intent to defraud the bank. I think the case law has been pretty clear that as to the first section of the bank fraud act, there was a requisite element of specific intent to defraud the financial institution itself. So the Supreme Court and its decision at the end of June of this year in law for and found that as to subsection two of the bank fraud statute. Why didn't you, you could have brought this to our attention well before the day of argument. You know, I apologize and the reason is the brief of we're back finished back in February. And I wasn't vigilant as I should have been and when the opinion came out in late June. Did not this a supplemental authority? Well, the reason not is the under as I'll explain the way the charges are framed in this case. You have first of all, no substantive bank fraud counts. You have substantive wire fraud counts. As to those counts, I believe the case laws we stated is very clear. There's a specific intent to defraud element of those counts. And then as to bank fraud, the way it's charged in this case is part of the first count conspiracy, which identifies both bank fraud and wire fraud as the underlying criminal acts of the conspiracy. The bank fraud reference does it designate by separate statute sections. It does use both. Aside from the tardiness of bringing this up, I'm not sure it helps you because the evidence here is simply overwhelming in terms of what your. What's your client was up to and I bring it to court. I just don't I don't see this as much of a question of law. I just think it's a question of it's basically just down to a jury question and as to whether your client intended. He defrauded everyone in the neighborhood. He defrauded the borrowers and he defrauded the credit union and everything. And the question is whether he intended to do so. And there was overwhelming evidence before the jury that he knew what it was up to. They were. They were. Driving credit union officials. They were making false affliction false representations to the borrowers. He's up to his neck and fraud. I think these you don't think his case does have you do you know and that's why I'm trying you know your part. You're you're you're diving on your sword. In a sense it doesn't have you don't think it out. You think he you think he. You're. You overstated in your brief. You're abandoned in that part of well what we stayed in the brief was that what did they have to prove and approve and attempted to fraud. It has to be a potential to fraud and that's the point in that and your standards not sufficient evidence of an attempt to defraud. And that's the question that you lost on. Motions in the district court you lost it before the jury and you're saying that up here and that's what that gets down there whether there is enough and it looks pretty. Damn for your your your fellow did you all try the case or just you did we did the vendor had it for. We had it from the outset we we did try the case and appreciate the candor of the court in expressing your views quickly about the facts in the case. Obviously we respectfully. For a long time I look and evidently you say that some of it shouldn't have come in well I think there's there's there's bad looking evidence in that certainly. We don't dispute what you have here clearly is a partnership between my client Mr. Logan and Mr. Bingham and we understand that the reality of that relationship relationship of a partnership often entails but not necessarily always the partners knowing what each other doing. So our content in this case is because of the somewhat unique characteristics of each of these two partners. There was not a situation where they necessarily knew what each other were doing and more importantly the issue we presented and we're presenting to you and I understand that a sufficiency argument is always a big uphill battle for a defendant when they think that we can we understand that reality. What I'm asking this court to look at is because of the unique characteristics of the individuals involved. We don't believe there's enough evidence to show that Mr. Logan had the intent because he didn't have the knowledge that Mr. Bingham and also Mr. Bingham surrogate the inside man Mr. Nixon Mr. Bingham. Right. Your guys blame the one that on those two they're the real culprits here so what you say. We're saying that they clearly acknowledge and we believe the evidence is overwhelming that they commit a fraud on Navy Federal. The question we've raised is we don't believe that the evidence was sufficient and Mr. Logan was sufficiently knowledgeable about what they were doing vis-a-vis Navy Federal to make him a knowing particular. He was lying to everybody and he got all the money as it turns out. Well, certainly don't agree with that as we laid out. I know you don't agree with that. I wouldn't expect this but he's wasn't submitted to the jury on any kind of negligence theory. I mean, the men's rate was made perfectly clear that he was either going to be, you know, an actual knowing encounter will fulfill blindness. Well, we didn't suggest negligence in that respect. Certainly there wasn't any negligence of instruction. No, and that's not really an issue. The concern we had first of all was, and of course what we initially our primary argument the jury would be, again as I'm suggesting to you, that although they are partners and there's no dispute about that, they basically had not a not a Chinese wall of formal sense. But Mr. Bingham, because of his prior employment with Navy Federal, his knowledge about the long-term. Mr. Bingham was the insider at the credit union. He was kind of the recent insider. He actually left Navy Federal, gone to a job with veterans administration, but also in a loan officer capacity. And his previous colleague, Mr. Nixon, who was also charged. Logan, you know, on the brides. Mr. Logan, our contentionism, I believe you haven't showed again to Mr. Bingham, Mr. Logan would make payments at Mr. Bingham's direction to his. Yes, your club was paying the money to the guys at the back. And so what he says that he was instilling a thing of the holdings. Well, what I want to report to consider, as you look at the record, the key witness for the government was Mr. Bingham. And I'd ask you carefully consider when you look at his testimony in total, I think it actually gives a very good overview. And he pledged something. Yeah, he pledged, he pled also to the plan and cooperation and testified against. Exactly. Yes, he certainly did. He's a turn coat. A minute co-conspirer. Right. And when you look at his testimony, again, he's a key government witness. He lays out what I believe is a pretty accurate overview of what the relationship was between him and my climate, Mr. Logan. Mr. Bingham leaves Navy Federal Credit Union employment, moved to Georgia, takes a job with the Veterans Administration, also in a loan officer capacity. He moves into a neighborhood where Mr. Logan lives, they become friends. They decide to start a business together, which Mr. Bingham insisted at trial, no one disputed that business start off as a legitimate business called Cash Money Brothers. That was going to manage properties, was going to try to obtain partners who had good credit, they could buy properties, manage them, rent them out, fix them up, possibly flip them later if the market went up. And that Mr. Bingham stayed, that was a legitimate business they started. And that when the question of let's get financing for purchasing properties came up, Mr. Bingham and Mr. Logan do not have a good credit record. So they need to bring in partners, people they believe to have good credit records who could qualify for loans. And then Mr. Bingham was the one who handled the loan processing with Navy Federal because that's where he had been employed and he knew people there. And then as Mr. Bingham's testimony establishes, is this... Where are we going with all this? I mean, it seems to me where we're going is where he wouldn't want to go because we are just recounting the evidence that was submitted to the jury. Well, we're about to get to the point I appreciate that you know, as Mr. Bingham's testimony progressed as to the chronology, Mr. Bingham is in touch with Mr. Nixon who was at Navy Federal. And initially, Mr. Bingham is saying, we're going to start submitting these loans. Well, Mr. Lovegren knew what Mr. Bingham was up there. This is the point, Your Honor. Mr. Bingham's acknowledgement his own testimony is when they initiate the loan process through Mr. Nixon, the request that Mr. Nixon was, let's not falsify loans, he didn't suggest that, is can you basically take our loan from the bottom of the pile and bring it to the top of the pile so we can get quicker processing. And we should do that for us. And that even Mr. Nixon, his trial testimony, another government witness. So that's what the bribes are paid for to get them to the top of the stack. Well, I wouldn't use the term bribe, but they would like to term bribe, but if you had to view it in the light most favorable to the government, they called it a bribe and the jury must have thought it was a bribe. And even under what you say, it's a bribe, I mean, they were influencing the decisions of the bank. That would be correct. They forget them from the bottom of the stack to the top of the stack. Exactly. So they get approved quicker. And that's the point I'm trying to make is when you look at Mr. Bingham's testimony at the outset, with Mr. Logan would have known would be Mr. Bingham has someone that maybe federal work in there who can get these loans to move more quickly. And we're going to pay him a fee bribe if you will call it that. That's what they argued about it. It's not my term. It was used to trial and send the briefs. I understand that. I mean, the government calls it bribe. And there was something they argued it's a jury that was bribe, right? We don't dispute the payments made. Famous paid and they got into the jury. They're bribs. And the jury found Mr. Logan guilty. So they must have taken it taking the due most favorable to the government. They found them to be bribe. Well, the point would try to be a slang term in the context of what really happened here. But we don't dispute the jury with the government theory. Well, I guess the point we're trying to make is that once this process began where it's moving the loans from the bottom to the top of the stack, then Mr. Bingham's testimony indicated that there was some problems with the processing of some of the loans not going through. And that he was in touch with Mr. Bingham's in touch with Mr. Nixon. And they basically arranged that there's going to be falsified information in some of these loan applications. We just think this was the essence of James point. We just rehashing evidence that was that was before the jury. And you know, I mean, that's your problem. If you've got an adverse jury, or I know you don't like certain evidence that came in. You didn't like the fact that evidence from the testimony from the individual borrowers came in, but it was. I didn't see the problem with that. It was all part of one. We all wrapped up in one scheme. And the. The, the, the, the, the, the, the borrow, I mean, the floating the credit unit. And the floating the borrowers, each was necessary to accomplish the conspiracy in its totality, because without the floating the, the, the bariturs, he would never have gotten them to submit the applications without telling them that these loan proceeds were going to be used to manage the. The property went in fact they were used for his personal benefit. So why. Why for example, was it erroneous for him to, for the district judge to admit testimony from the borrowers, because they were all part of this. They were all part of this scheme. We didn't object to the testimony of borrowers that showed the processing portion of the case. That is how they were approached and they agreed to become partners and to sign on certain loans. It was some of the other testimony where they then were in effect, complaining about certain promises that claim is to Logan made it. They didn't keep them about the maintenance and management of the properties we thought went beyond what was relevant to the fraud charge. So the only and wrapping up my time is about to expire. The point we're trying to make and I understand what your comments are is that once you look at again Mr. Bingham's testimony, when there's a shift in conduct with maybe federal to actually put false information in applications, which is really the heart of the fraud. Mr. Bingham doesn't suggest or testify in order to Mr. Nixon that they discussed that with Mr. Logan. So that means Mr. Logan's left thinking. Well, one of these fellows said that he's that Mr. Logan, supply him with a copy of the loan application and they went through a litany of false statements on it like it says you work for low tour investors. Is that correct? No. Yeah, Mr. Dulles. Mr. Dulles, monthly pay is $5200 a month. Is that correct? No. It says you're the chief finance officer of low to investors. Is that correct? No. It says your business phone is and I give them what's the number in here? Is that what your phone number was? No. I agree that he says Logan gave you that stuff. It's all false. That's the loan application. That was a testimony of yes, a lockslee Douglas. He's a lovely person. Came forward and said anything like that. And as I think you've seen the breach, he also acknowledged on earlier occasions haven't said things contrary. So again, looking at the totality of the evidence, our position would be that there's not enough substantial evidence to show the required intent and knowledge of Mr. Look. Thank you, sir. Thank you. Appreciate it. Mr. Grain. May he's the court. My name is Alex one for the United States and I'll be brief unless the court has any questions. But essentially, Mr. Brem is rating three arguments none of which have married first on the sufficiency of the evidence claim. He's trying to litigate here, really, litigate the case here and that's not appropriate. What is there to those other than the sufficiency of the evidence claim where we're simply rehashing the evidence at trial? Yes, correct the honor. Well, the evidence in this case here shows that there's direct evidence of the defendant intending to defraud the bank. He submitted false membership applications. He personally submitted false loan applications, which was confirmed by witness testimony. He personally submitted documents to the bank, which claimed these lease applications for the false and he bribed personally bribed. I mean, there's a judge king touched on it, but there's an avalanche of evidence in this case both these are the credit unions in the bank and these are the borrowers. He's defrauding everybody. That's correct, your honor. And for that reason, the sufficiency of the evidence claim obviously fails. Did you try the case? Yes, your honor. He says that there was evidence admitted that was erroneously admitted. That's the second point that you're going to get to. And what I was concerned about what I want to focus on is that you throw in an alternative argument there that it was that harmless error. You argue harmless error in this case. I was glad we're gassed it. We come in in this case and say, well, maybe we did over try it, but if we did it was harmless. No, your honor. The thrust of the argument would be on the first time. I was surprised you were already harmless error in this case. We rest mainly on the relevant. It's clearly relevant to the scheme. You lie to the bank so you get the money to the straw borrowers. I was just a precautionary sale. That's correct, your honor. I hope it's trying to protect the record. But essentially, it's impossible, as you pointed out, to commit this fraud scheme as described explicitly in the superseding indictment without talking about what was told to the bars who were. And they went to the same well and asked the bars to keep applying for more. No, you're right. I'm sorry, your honor. There is no error. Correct, your honor. That would be our position. I can stick with that now. Thank you, your honor. You've got a willful blindness instruction. I say that you shouldn't have gotten that. Well, your honor, the defendant, as you saw, basically claimed and told you that the defendant was the president of cash money brothers. And there was no way he knew a fraud was being committed by his co-conferitors and his partners. And that argument, which was made at trial, makes the willful blindness instruction particularly appropriate. Right, your honor. So we cite a number of four certain cases that show that wherever the defendant's claiming or disavowing knowledge of the fraud, but there's obviously red flags here, bribes being paid, loans defaulting, no repairs being made, that that instruction is particularly appropriate. Have your lady made clear that carelessness on negligence or whatever was absolutely not a basis on which to connect? That's correct, your honor. And the judge specifically used the omelain instruction, which says you may not conclude that the defendant have knowledge, however, from proof of a mistake, negligence, carelessness or belief in an inaccurate proposition. So the joint instruction was plainly appropriate and appropriately given in his case and we asked the court to have. Do you have any further than further? Not unless the court has any questions. Judge Hamilton, do you have any questions? No, sir. Good King. Thank you, Your Honor. Mr. Brein. Thank you, Your Honor. It's just a quick point on the what's commonly called deliberate ignorance or willful blindness. The current concern we raised in this case was not that the language of the instruction was anyway incorrect. It's just that it simply shouldn't have been given. I understand from the court's comments. The circumstances didn't warrant a willful blindness instruction. Yes, again, with the emphasis we make is that under the law, the willful blindness instruction may be appropriate, although the cases have said it should be rarely used. And if it's appropriate, it's when there's evidence, the defendant questioned purposely did something to try and avoid knowing. As opposed to simply saying, I didn't know. That just doesn't open the door. What was the order saying? I thought the representation was whether he was claiming that your man, Vengem, hoodwink team or something. And got him into this mess. Well, it wasn't a hoodwink. I mean, can they start a legitimate business as Mr. Bingham himself testified? Robin, in Vengem was down there, robbing the people at the bank and you were fairly distantly paid him $3,500 or whatever it was. $700 per application. All he did was innocent because he was relying on Vengem. Well, which seemed like pretty good place to fill in a willful blindness instruction. We're a government to ask for it and for the judge, which we review that for a view of discretion, right? Whether the giving whether the willful blindness instruction was appropriate in the circumstance. That is correct. It is a beautiful case. I think it's a fantastic legal principles contained therein. You just say in these circumstances, it was an abusive discretion to give. Correct. The language of the instruction actually used was correct language. The issue is should have been given at all we can tend to should not. Thank you so much, Aaron. We will come down to greet Council and then we will move into our last case